In a conference paper and law journal article earlier this year I highlighted concerns regarding the legislation, arguing that the commitment of many Australian government agencies - and of senior officials - to the 'open government' philosophy was at best uncertain. Enthusiasm, as in the fatuous Gruen Government 2.0 report, for fashionable tools such as Twitter does not offset resistance on the part of Ministers, agency heads and midlevel bureaucrats to letting sunlight into the bowels of public administration. Vampires, watercolours and mushrooms may need to be kept in the dark; the public are made of stronger stuff and should not be.
The absence of FOI application charges and low processing charges is an acceptable cost for the operation of a contemporary liberal democratic state.
Along with closure of National Archives offices it is thus disturbing to see responses by national government agencies to the discussion paper [PDF] released by the Office of the Australian Information Commissioner in October this year. The Commissioner states that -
Fees and charges have always played a central and at times contentious role in the operation of the Freedom of Information Act 1982 (FOI Act).In its response the Department of Foreign Affairs & Trade (DFAT) - not widely known for its frugality or efficiency - has called for the reinstatement of application fees. That call is echoed by the Department of Resources, Energy & Trade (DRET), which suggests $50 per application for non-personal requests [PDF]. The Department of Finance & Deregulation [RTF] suggests $40. IP Australia proposes a waivable application fee for all requests, personal or otherwise [PDF]. The response by the Department of Prime Minister & Cabinet (fear not, Sir Humphrey Appleby lives!) is a work of silky equivocation rather than leadership.
The policy of the FOI Act is that agencies can impose charges to recoup some of the costs incurred in processing FOI requests. This ability to impose a charge also plays a practical part in the discussions that are held between agencies and applicants about defining and managing the scope of requests.
On the other hand, the FOI Act recognises that charges can impede the exercise by the community of the right to seek access to government documents. A stated object of the Act is that it should be administered 'as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost'. Agencies also have a discretion under the Act not to impose a charge or to waive or reduce a charge.
FOI charges have figured prominently in much of the debate about the operation of FOI laws in Australia. Some complain that charges are assessed or imposed by agencies so as to frustrate access to government information. Others counter that only minimal charges are collected and that the true cost of FOI to Australian government and the community is understated.
Important legislative changes were introduced in 2010 to the FOI fees and charges regime. Those changes abolished application fees and reduced the charges that agencies can impose.
In introducing those changes, the Australian Government recognised the importance and sensitivity of this step and foreshadowed that the Australian Information Commissioner would be asked to commence a review of the charges regime within a year of these changes commencing.
The agencies acknowledge that historically the cost of collecting the charges has outweighed the revenue; the Defence Department accordingly advises against reinstatement [PDF]. The calls for reinstatement appear to reflect -
• a desire to inhibit unstructured requestsWhat about processing fees? Not much joy for civil society advocates, journalists and academics from DFAT and DRET. The latter proposes $44.87 per hour for search and retrieval (an increase from the current $15), $59.83 per hour for decision-making (up from $20), $13.16 per page for transcripts (up from $4.40), and $0.30 per page for photocopying.
• the failure of agencies to point potential applicants to information in other formats (eg in Hansard, Annual Reports and agency websites
DFAT has proposed that foreign citizens be charged at a higher rate, citing an applicant from an overseas university who sought documents for an essay, taking up the time of a senior official for two weeks, and paid nothing for the documents after successfully applying for a waiver on financial hardship grounds.